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Saturday, July 07, 2012

I have long marveled at the verbal contortions Romney must go through to a) justify current GOP nonsense positions and b) align his own prior pronouncements and actions with current nonsense. Often this Operation Twist further involves c) differentiating his past and even sometimes his present position from a functionally similar position of Obama's, with whom the dear departed centrist pragmatist Massachusetts Mitt has often been aligned.

I gave my love a cherry that had no stone,
I gave my love a chicken that had no bone,
I gave my love a story that had no end,
I gave my love a baby with no cryin'.

But Romney outdid himself this week when reversing the position taken by his aide Erich Fehrnstrom and his own long-held position that the individual mandate is a penalty, not a tax. Listen carefully:

“While I agreed with the dissent, that’s overtaken by the fact that the majority of the Court said it’s a tax and therefore it is a tax. They have spoken. There’s no way around that,” Romney said. “The American people know that President Obama has broken the pledge he made — said he wouldn’t raise taxes on middle-income Americans.”

Not only does Romney here assert that his own reasoning is negated in some existential sense by the Court's 5-4 ruling, along with the reasoning of the four conservative justices with whom he agreed. He is claiming that Obama's long-held position, which matches his own, retroactively became a lie the moment Roberts read the crux of his decision from the bench. An ex post facto lie.

More Catholic than the Pope, he. In his majority opinion, Roberts acknowledges what the government argued: that a given exaction can be considered a tax in one sense and not a tax in others. Here is how he frames the problem (my emphasis):

And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.

The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one (p. 32).

And here is his conclusion:

The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness (p.44).

It might be thought that Romney's claim that Obama "lied" in characterizing the mandate as a penalty rather than a tax also makes a liar of Romney himself, for maintaining this many a year that the mandate in the Massachusetts law is a penalty rather than a tax (notwithstanding that it's called a "tax penalty" on Massachusetts state government websites). That is not quite true. Romney's widely-mocked wriggle in this regard has some basis in the case pleadings as well as in Roberts' decision:

CRAWFORD: “But does that mean that the mandate in the state of Massachusetts under your health care law also is a tax? I mean, you raised taxes as governor.”

ROMNEY: “Actually, the chief justice in his opinion made it very clear that at the state level, states have the power to put in place mandates. They don’t need to require them to be called taxes in order for them to be constitutional. And as a result, Massachusetts’ mandate was a mandate, was a penalty, was described that way by the Legislature and by me, and so it stays as it was.”

CRAWFORD: “So at the state level because of … you’re saying the Supreme Court says that’s different, that the federal government — the powers are different between the states and the federal government? Does that make sense to you?”

ROMNEY: “Just take a read of the opinion. The chief justice said that states have what’s known as police power, and states can implement penalties and mandates and so forth under their constitutions, which is what Massachusetts did. But the federal government does not have those powers, and therefore for the Supreme Court to reach the conclusion it did — that the law was constitutional — they had to find it was a tax, and they did. And therefore Obamacare’s a tax. Like it or not, it’s a tax.”

Verrilli and Justice Ginsburg also both acknowledged that states have unchallenged police power to impose purchase mandates (using that fact to argue that there's little incentive for a legislature to abuse that power). But Romney's technical correctness on this point only highlights the casuistry on which not only this particular argument but Romney's entire campaign m.o. depends. The method is to convert hairline distinctions, usually illusory, into Manichean contrasts. I said Detroit's bankruptcy should be managed, but there should be no government bailout first! (never mind that there was no private funding available when GM and Chrysler first became insolvent). The mandate was a good solution for Massachusetts but is unconstitutional for the country! (Never mind that the Court "has spoken" on that question too.) The country needed stimulus -- just not that stimulus.

In this particular case, it's true that no court ever designated Massachusetts' individual mandate as a tax, because its legality was never challenged. But the logic under which Roberts determined that the federal mandate can be construed as a tax -- it raises revenue, it's collected through the taxing authority, it does not criminalize the penalized behavior -- all applies to the Massachusetts law. In the only sense that matters to an anti-tax fundamentalist -- it extracts revenue from a certain class of citizens -- the Massachusetts mandate is as much a tax as the federal one.

Perhaps Romney should retire to a monastery and devote himself to teasing out the fine points of dogma. Or perhaps not. His main motive -- twisting facts to obtain political power at any cost -- would be gone.

About Me

I'm a media consultant with a lasting interest in how democracy works, how it malfunctions and self-corrects. My working assumption is that you can't fool all the people all the time -- at least, not in Fox News's current stage of development.
I have a Ph.D. in medieval English literature and a propensity to parse the rhetoric and logic of our political leaders as well as that of media pundits and scholars who jump into the national debate. I wrote a dissertation on the remarkably humane and subtle medieval English anchorite Julian of Norwich, a mystic nun whose knack of squaring circles and framing paradoxes reminds me a little of our current president. A sampling of that work (mind the google gaps) is here: http://bit.ly/OzwsrR